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testaments heretofore admitted or hereafter to be admitted to probate, or which have been or may be offered for record and filing in any county of this State, any person interested in the estate of the testator may contest such will or testament within the time, in the manner, and for any or all the causes prescribed by the laws of Indiana in cases of the contest of domestic wills: Provided, That nothing in this section shall be so construed as to allow the contest of any foreign will which may have been probated, or filed and recorded, in any county of this State, more than three years before the commencement of such contest.
[2 R. S. 1852, p. 308. In force May 6, 1853.] 2601. When infants, absentees, or insane may contest. fants and persons absent from the State or of unsound mind shall have two years after their disabilities are removed to contest the validity or due execution of such will.
2602. Determination of Court. 42. If such determination be against the validity of such will or the competency of the proof, the Court shall refuse or revoke the probate thereof; but if it be in favor of the validity and due execution of such will, probate thereof shall be admitted or ratified.
1. The Act of 1869 (S., p. 126) allowed appeals to the Circuit Court to the parties or their heirs in cases of suits to contest wills which were pending on December 21, 1865, when sections forty-three, and forty-four were repealed.
2603. Costs. 49. If such cause be decided against the defendants therein, the Court may make such orders as to the payment of the costs thereof as it may
deem just. 2004. Clerk's duty- Revocation of probate-Costs. 50. When ever the probate of any will shall be revoked as herein provided, the Clerk of the proper Court shall record such revocation in his record of wills and probate thereof, and attest the same, and shall cause a notice thereof to be served by the Sheriff on the executors or administrators with the will annexed, if letters shall have been issued, and cause notice thereof to be published for three weeks successively in a newspaper printed in his county, if one shall be printed therein; and the expenses for the record, notice, service thereof, and publication shall be taxed as a part of the costs of the proceedings against the party liable for the costs under the determination of the Court in which the same shall have been finally determined.
2005. Appeal to Supreme Court. 45. Any person affected by the proceedings of such Court may appeal or prosecute a writ of error to the Supreme Court from either, and may assign errors upon matters of fact and law.
1. As far as this section warrants an appeal upon a question of fact, it is repealed by section 655.— Coffman v. Reeves, 62 Ind. 334.
2006. Opinion of Supreme Court. 46. The determination of such Supreme Court upon such writ of error or upon such appeal shall be certified back to the Court from which the writ was prosecuted or the appeal taken, with directions as to what orders the Court shall make in the prem:
ARTICLE 4- LOST WILLS.
SEC. 2607. Record of decree establishing - Effect. 2609. Proofs to establish lost will. 2608. Effect of restraining orders.
2610. Record, as evidence, [2 R. S. 1852, p. 308. In force May 6, 1853.] 2007. Record of decree establishing - Effect. 51. Whenever any will shall have been lost or destroyed, and the same shall have been established according to law, the decree of the Court establishing such will shall be recorded in the proper book thereof, by the Clerk of the proper Court in which such will might have been proved if not lost or destroyed; and letters testamentary or of administration with the will annexed shall be issued thereon, in the same manner as upon wills duly proved before such Court or the Clerk thereof, and letters of administration previously granted upon the same estate shall be revoked; but the Court before which proceedings were had to contest the validity, due execution, or to prove such will, or to establish a lost or destroyed will, shall have authority to restrain the executor or administrator in the meantime acting from any proceedings which it may judge injurious to the heirs or devisees of the deceased.
2008. Effect of restraining orders. 52. After the service of such restraining order, such administrator, executor, or administrator with the will annexed shall suspend all proceedings in relation to the estate of the testator, except the collection and recovery of moneys and the payment of debts, and the performance of such duties in the disposal of the property of such estate not inconsistent with the rights of the parties interested in such estate, whether the will in controversy or the probate thereof should be defeated or established, until a decision be had of such case.
2009. Proofs to establish lost will. 53. No will of any testator shall be allowed to be proven and established as lost or destroyed, unless the same shall be proven to have been in existence at the time of the death of the testator; or be shown to have been destroyed in the life-time of the testator without his consent, or otherwise fraudulently disposed of; nor unless the provisions shall be clearly proven by two witnesses, or by a correct copy and the testimony of one witness.
2010. Record as evidence. 54. The record of the testimony taken and recorded pursuant to the provisions of this Act, and exemplifications of such record by the officer in whose custody the same may be, shall be received as evidence upon any controversy concerning any lands devised by such will; and shall be of the same force and effect upon the trial of such controversy, and may be rebutted, impeached, and sustained in like manner as if taken in open Court, if the witnesses examined when probate was allowed are dead, out of the State, or have become incompetent since the admission of such will to probate.
ARTICLE 5- GENERAL PROVISIONS. SEC. 2611. The term “ will ” construed.
2013. Former wills not impaired. 2612, Act applies to all wills.
[2 R. S. 1852, p. 308. In force May 6, 1853.] 2011. The term “will” construed. 55. The term "will," as used in this Act, shall be construed to include all wills, testaments, codicils, and supplemental wills.
2012. Act applies to all wills. 56. The provisions of this Act in relation to proof and probate of wills, and the proceedings in respect to establishing or contesting the validity of any will, shall apply as well to wills made previous as to those made subsequent to the time when this Act shall take effect.
2613. Former wills not impaired. 57. Nothing contained in the provisions of this Act shall be construed to impair the validity of any will made before this Act shall take effect in conformity with any law in force at the time of the execution of such will.
NOTES TO CHAPTER 9.
ARTICLE 1- MAKING – REVOCATION - EFFECT.
2556. Who may make a will. To authorize one to make a will be need not be in the full possession of his reasoning faculties. He must, however, be of sufficiently sound mind and memory to enable him to understand and realize the nature of the business about which he is engaged; i. e., to comprehend what it is to make a will and to give intelligent directions as to the disposition which he wishes to be made of his property; Dyer v. Dyer, 87-18; see Runkle v. Gates, 11-95.
2. Owners in common may dispose of their common property by a joint will and, both having died leaving the will unrevoked, as to either it may be probated; Black v. Richards, 95-188.
3. An adjudication that one is insane has no less force before than after the ap. pointment of a guardian. It is not affected by a discharge of the guardian, on final settlement of his accounts; Redden v. Baker, 86–194.
4. An instrument executed, conformably to statute, which is to operate during the life time of the grantor and which passes an estate in the property during his life time
even, although the absolute enjoyment of the estate is postponed until after his death is a deed; not a will; Spencer v. Robbins, 106–584.
2559. Revocation and republication. In order that there may be a valid revocation of a will there must be the intention to revoke and the act manifesting the intention. The act must be such as the statute recognizes as a proper manifestation of the intention to revoke (Woolery r. Woolery, 48–523; Runkle o. Gates, 11-95). The erasure, by a testator of his signature, to a will, designedly and deliberately made, ac. companied by the intention to revoke, must be deemed a destruction of the will; and, the purposely drawing a pencil — or other implement which erases, cancels or obliterates — over the signature to a will, by the maker, must be deemed to constitute such a mutilation as takes from the instrument an element essential to its validity. It is, therefore, a revocation; Woodfill v. Patton, 76-579.
2560. When birth of child revokes. Testator died after the death of his first child, the second being ventre sa mere. The widow and such child, afterward born, will take, under a will, as tenants in common. The estate, thus vested, will not be opened to admit children of the woman afterward born. On the death of the posthumous child its moiety passes to its parents; Biggs v. M'Carty, 86–363.
2567. Construction and effect. A devise of lands to testator's wife, “ so long as she shall remain my widow" is not in restraint of marriage. The words used are mere words in limitation of the estate; Summit v. Yount, 109-510; Hibbits v. Jack, 97-567; see Harmon v. Brown, 58,207, approved and followed in Coon v. Bean, 69–474; Stilwell v. Knapper, 69–558; Brown v. Harmon, 72–412; Tate v. M’Kain, 74-493; O'Harrow v. Whitney, 85–140; see, also, Rumsey o. Durham, 5–71. A husband may thus, by limitation, restrict the estate of his surviving wife; Wood v. Beasley, 107–37. In such case the widow's estate will cease on her second marriage; Sims o. Gay, 109–505; Summit o. Yount, 109–510; Wood v. Beasley, 107–37; Harmon v. Brown, 58-207; and, she can not claim as an heir, on the termination of such estate; Wood v. Beasley, 107– 38; Brown v. Harmon, 73–412.
2. The will of testator directed that the use and occupation and the rents and profits of certain real estate should be allowed and paid over to his wife, during her natural life, for the support of herself and the support and education of his minor son and that after her death and, after the son should become of full age, the land “shall then be divided among my children, then living, share and share alike”. On testator's death his widow took a life estate in the land, under the will, and his children a vested remainder. As his children were devised precisely the same estate, in the land, that they would have taken by descent (testator dying during 1844), they took the estate by descent, under the law, and not by purchase, under the will; Davidson o. Koehler, 76–406.
2571. When devise shall not lapse. The word “descendant”, as used in this section, means an heir in the descending line; it can not include collateral kindred; ex. gr., a brother; West v. West, 89-531.
2. The former distinction between lapsed bequests and lapsed devises, as to their disposition, is destroyed by this section and section 2567; West o. West, 89-533, fol. lowing Holbrook v. M'Cleary, 79–167. A void or lapsed devise — like a void or lapsed legacy — goes in to the residuum and passes, under the residuary clause of the will, to the surviving residuary devisees and the descendants of such of them as have died leaving descendants, to the exclusion of testator's heirs who are not named in such residuary clause; Holbrook v. M'Cleary, 79–171.
3. Bequest, to a grand daughter, five hundred dollars. She died, at the age of twenty-five and before testator, leaving one infant child. A codicil provided that the legacy of any legatee dying in infancy should go to his or her children -- if any — and that the legacies should only be paid to those, respectively, who have arrived at full age. Joseph — the child mentioned — shall take the share of his mother, under this section, and payment can not be delayed until his majority; Cunningham 0. Dungan. 83–574.
4. Devise of land “to M and his heirs”. M, who was not a descendant of testator, died, before the latter, leaving a widow and children. The words “his heirs ”, in the devise, were words of limitation and not of purchase and the devise lapsed on the death of.M; Maxwell v. Featherston, 83-341.
2575. When title from heirs not impaired by will. The purchaser of lands from heirs can not invoke the statute of limitations by demurrer to a complaint, for their recovery, unless the complaint shows that the case is not within any of the exceptions to the statute; Biggs o. M'Carty, 86–356; see Milner o. Highland, 77–458; Harlem 0. Watson, 63–143.
ARTICLE 2- EXECUTION AND PROBATE.
2576. How executed — Witnesses. This section does not require that the witnesses to the execution of a will shall attest it at testator's request. Hence, such request is not necessary. So, where one expresses a wish to make a will, directs it to be prepared and, this having been done, signs it a request by the scrivener that persons present shall attest it, not objected to, is - in law — a request of testator; Dyer o. Dyer, 87-17; Bundy v. M’Knight, 48-502.
2. It is not necessary that the subscribing witnesses to a will shall attest it at the same time and in presence of each other; Johnson o. Johnson, 106–477, distinguishing Pattison v. Ransom, 55–402; Potts 0. Felton, 70-166, which did not involve this question.
3. The name and seal of testator appearing after the attestation clause, on the right hand, with the signatures of the attesting witnesses on the left, as a ground of contest of a will after probate, is frivolous; Hallowell 0. Hallowell, 88–253.
4. A testamentary instrument not attested and subscribed by two, or more, competent witnesses can not be, properly, admitted to probate. Wherefore, it is invalid as a claim against the decedent's estate and void and inoperative for any purpose; Moore o. Stephens, 97–272.
5. The attestation of a will, thus: “signed and sealed in the presence of” etc., fol. lowed by the signature of two witnesses is sufficient in form; Herbert v. Berrier, 81-3.
6. A schedule signed by a witness to a will can not be regarded as a part of the will, unless it is clearly identified as such; Fickle o. Snepp, 97-291.
7. The thing devised may be identified by parol evidence. The will will not be void for mere uncertainty of description; Black o. Richards, 95–190.
8. When it is found that testator, when making his will, was of sound mind and not overcome by persuasions, importunities, coercion, force or threats and was labor. ing under no delusion as to the amount of his property, a further finding that he was laboring under a delusion that certain of his children treated him badly will not justify a refusal to probate the will; Hite o. Sims, 97–335.
9. If one who subscribes a will as an attesting witness is competent for that parpose he is a fit person to write the testator's name thereto, at his request. It is not necessary that it should be shown that testator was incapacitated, by illness or other wise, from affixing his own name to the instrument. It is enough if it appears that he directed the person who wrote his name to do so, in execution of his purpose to make a will; Herbert o. Berrier, 81-3.